Fulbright Alert - ICC Rules of Arbitration 2012

Today marks the launch in Paris of
the new Rules of Arbitration of the International Chamber of Commerce (the
"ICC Rules"). The ICC Rules, last revised in 1998, were adopted by
the ICC World Council in June 2011 and will generally apply to all ICC
arbitrations commenced from January 1, 2012.

Some of the main changes made from
the 1998 Rules are as set out below.

Under Article 7, a party may join a
third party to the arbitration (without the consent of any other party being
required) simply by filing a Request for Joinder with the Secretariat, provided
that this is done before any arbitrator is appointed or confirmed. Once any
arbitrator is appointed or confirmed, joinder will require the agreement of all
parties, including the additional party.

Article 8 provides that any party
may make any type of claim or counterclaim against any other party to the
arbitration prior to the approval of the Terms of Reference, after which
additional claims or counterclaims require the authorization of the tribunal.

Article 9 of the revised Rules now
expressly confirms that claims arising out of or in connection with more than
one contract may be made in a single arbitration, while Article 10 empowers the
ICC Court to consolidate arbitrations, at the request of a party, subject to
certain requirements.

Case Management To Reduce Time and
Cost: A significant feature of the
revised Rules is the focus upon case management techniques designed to avoid
unnecessary delay and expense in the arbitral process. Article 24 requires a
tribunal to convene a case management conference when drawing up the Terms of
Reference or as soon as possible thereafter. Appendix IV to the new Rules also
suggests various techniques that parties and arbitrators may wish to utilize to
improve cost efficiency and avoid unnecessary delay and provides a list of
document disclosure issues for parties to consider.

Rules Adapt to Technological
Advancements: The revised Rules have been
updated to reflect changes in information technology and current modes of
communication and legal notice requirements. Antiquated methods of
communication such as telex have been replaced with updated and broadly defined
references to communication tools so as to provide flexibility for
technological advances.

Exceptions to Reliance upon National
Committees: While the role of the ICC's
National Committees is preserved in relation to the appointment of arbitrators,
Article 13 of the revised Rules permits the ICC Court directly to appoint
arbitrators in certain circumstances, for example where the National Committee
fails to make an appointment in the time allocated, or where one or more of the
parties is a State entity.

Article 6 Procedure to Consider
Prima Facie Existence of ICC Arbitration Clause: The revised Rules allow objections to the existence,
validity or scope of an arbitration agreement to be referred directly to the
arbitral tribunal rather than necessarily to the ICC Court.

Case-Specific Orders Regarding
Confidentiality Now Available:
Article 22 of the revised Rules envisages the tribunal making confidentiality
orders tailored to the specific needs of the case before them.

Challenges to Arbitrators Increase
the Scope of Disclosure Obligations:
Concerns about the increasing number of challenges brought against arbitrators
alleging a lack of independence and impartiality have prompted a clarification
and extension of arbitrators' disclosure obligations when accepting
appointments. Article 7 of the 1998 Rules provided that every arbitrator must
be and remain independent of the parties involved in the arbitration, and
required arbitrators to sign a statement of independence, but did not expressly
refer to "impartiality." While "independence" is understood
to be an objective test of the arbitrator's connections with the parties or
interest in the outcome, "impartiality" is a more subjective concept.
Article 11 of the revised Rules now provides that arbitrators must sign a
statement disclosing any facts or circumstances which might be of such a nature
as to call into question their independence in the eyes of the parties, as well
as any circumstances that could give rise to reasonable doubts as to their
impartiality.

Article 11 also requires arbitrators
to confirm their availability when accepting an appointment, codifying an
approach that the ICC Secretariat has followed in practice recently though not
appearing in the previous rules.

Emergency Arbitrator Available for
Immediate Relief: Where the arbitration agreement
post-dates the effective date of the revised Rules (i.e., January 1, 2012),
parties may now seek the appointment of an emergency arbitrator where urgent
relief is required before an arbitral tribunal can be fully constituted.
Article 29 of the revised Rules, in conjunction with procedures set forth in
Appendix V, authorizes the President of the ICC Court to appoint an emergency
arbitrator where the requesting party demonstrates that urgent relief is
necessary before the arbitral tribunal is constituted and able to receive the
file.

Although an emergency arbitrator's
order is binding on the parties, the arbitral tribunal, once constituted, may
modify, terminate, or annul an emergency arbitrator's order. The availability
of an emergency arbitrator does not preclude any right of the parties to seek
urgent interim relief from a competent judicial authority.

The revised ICC Rules reflect two
years of dedicated work by the ICC Commission on Arbitration (which includes
Fulbright partners Mark Baker, Richard Hill and Philip Punwar) and reflect the
evolving demands of users of international arbitration since 1998. While they
retain the many excellent features of the 1998 Rules, the revised Rules provide
modern, flexible and effective procedures to meet the needs and expectations of
the parties to international arbitration disputes.